Q&A: Can Meetings Be Recorded?

Q Are there any restrictions or rules that would permit videotaping of condo board
meetings? Is it legal? If taping is permissible, do the parties in the room
being taped have to be told of it beforehand?

—Keeping it Confidential

A “The question of whether or not an association’s meetings may be videotaped implicates several provisions of statutory and
common law,” explains attorney Gary Daddario of the law firm of Perkins & Anctil in Westford, MA. “Before analyzing the law, I provide my standard recommendation, which is to
remember to undertake a careful reading of the applicable provisions of the
association’s constituent documents. In addition to the necessity of complying with applicable law, a member of a
condominium unit owner organization must also comply with any provisions on
this subject that are contained in the association’s constituent documents.

“Under Massachusetts law, the video and audio portions of recording are treated
differently. Video recording implicates M.G.L. c. 214, §1B, which states that ‘[a] person shall have a right against unreasonable, substantial or serious
interference with his privacy.’ The language of the statute has been interpreted as requiring the Plaintiff to
show that the invasion was both unreasonable and substantial or serious. Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 490 Mass. 514, 517-519, 567 N.E.2d 912 (1991); O’Connor v. Police Commissioner of Boston, 408 Mass. 324, 330, 557 N.E.2d 1146
(1990). Analysis typically focuses on whether or not an individual has a reasonable
expectation of privacy at the time and place in question. A condominium is a
private organization and may create and enforce its own rules regarding such
matters as the recordings of meetings. In the absence of such guidance,
although the organization is private, condominium meetings typically occur in
public places or common areas. Therefore, the reasonable expectation of privacy
may be questioned. However, a recording solely of video of a meeting is likely
to possess little value absent audio.

“The response regarding audio recording is somewhat clearer. Audio recording
implicates the Massachusetts Wiretapping Statute (M.G.L. c. 272, §99). The statute defines “oral communication” as ‘speech, except such speech as is transmitted over public air waves by radio or
similar device.’ The Statute also prohibits the interception of oral communications. ‘Interception’ is defined as meaning ‘to secretly hear, secretly record, or aid another to secretly hear or record the
contents of any wire or oral communication….’ However, it is important to note that our courts have defined “secretly” rather broadly. The United Stated First Circuit Court of Appeals held, in Gilday v. Dubois, 124
F.3d 277, 289 (1997) that a secretive interception occurs ‘unless both parties…had actual knowledge….’ Four years later, in Commonwealth v. Hyde, 434 Mass. 594, 599 (2001), the
Massachusetts Supreme Judicial Court reiterated the point, holding that the
Statute prohibits ‘secret’ recordings made without the target’s ‘permission or knowledge.’ Since permission or knowledge is required to record audio, it appears that audio
recording of a condominium association meeting would require the participants’ consent. Practically speaking, absent consent, once provided with knowledge of the
recording, parties could elect not to speak and meetings could be cancelled or
rescheduled.

“From a practical perspective, there is also a question as to whether there is
any benefit to attempting to record meetings absent consent. If there is no controversy associated with the meeting, then one’s presence and ability to take notes would appear sufficient for documenting the
event. To the extent that there is controversy associated with the meeting,
attempts to force recording based on knowledge without consent (if such
attempts do not result in cancellation) would most likely serve to exacerbate
the dispute between the feuding factions without even touching on the true
substance of the matter.”
n

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